Town and country planning – Gypsies – Caravan site – Gypsy family appealing against refusal of temporary planning permission for established gypsy caravan site – Appellant secretary of state recovering jurisdiction to determine appeal – Planning inspector recommending grant of further temporary permission – Appellant refusing permission – Whether appellant giving sufficient reasons for disagreeing with findings of inspector – Whether adequately taking into account rights of family under Article 8 of European Convention on Human Rights – Appeal allowed
The first respondent was a Romany gypsy who lived with his wife and three children on a caravan site near the village of Bletsoe, Bedfordshire, pursuant to a temporary planning permission which ran until June 2012. In May 2012, the second respondent council refused the first respondent’s application for a permanent planning permission. The first respondent’s appeal against that decision was recovered by the secretary of state for his own determination.
After conducting a public inquiry, the secretary of state’s planning inspector recommended the grant of a further temporary planning permission for a period of two years. That recommendation was partly based on a finding that there was a current unmet need for gypsy sites in the area and that, while the second respondents had granted planning permission for another site (Meadow Lane) which might meet that need, it was uncertain whether that site could offer a satisfactory living environment. The inspector identified various problems with the Meadow Lane site including its distance from any other settlement, issues of road noise, and odours emanating from a sewage treatment plant and an abattoir on adjacent land.
The secretary of state disagreed with the inspector and refused planning permission. He concluded that the second respondents would overcome the problems with the Meadow Lane site and that a present assessment could be made that that development would satisfactorily meet the unmet need for caravan pitches. He found that there were other locations where the first respondent and his family could probably pitch their caravan and that they were unlikely to have to resort to roadside living. Having considered their personal circumstances, in the context of their right to respect for their home under Article 8 of the European Convention on Human Rights, he concluded that refusing permission struck a fair balance between their rights and the wider public interest.
The first respondent brought a successful challenge to the secretary of state’s decision under section 288 of the Town and Country Planning Act 1990. The judge held that the secretary of state, having accepted his inspector’s findings as to the environmental issues at the Meadow Lane site, had given inadequate reasons for his conclusion that the second respondents would overcome those issues: see [2015] EWHC 2463 (Admin); [2015] PLSCS 256.
The secretary of state appealed. By a cross-appeal, the first respondent argued that the secretary of state had failed properly to take into account his family’s Article 8 rights.
Held: The appeal was allowed.
(1) The secretary of state had given sufficient reasons for his decision to refuse planning permission. Those reasons, including those relating to the Meadow Lane site, were proper, adequate and intelligible and explained his conclusions on the principal important controversial issues. They made clear to the first respondent, and to the other participants in the appeal, why the appeal was lost and the application for planning permission refused: South Bucks District Council v Porter (No 2) [004] UKHL 33; [2004] 1 WLR 1953 applied.
Where the secretary of state disagreed with his inspector, he had to explain full and in sufficiently clear terms why he disagreed, but there was no heightened standard for reasons in such a case. Whether the reasons given were proper, adequate and intelligible would always depend on the circumstances of the case, and, where the secretary of state differed from his inspector, on the particular circumstances in which he did so: Horada v Secretary of State for Communities and Local Government [2016] EWCA Civ 169; [2016] PLSCS 93 applied. The secretary of state did not have to give “reasons for his reasons”, but simply had to make sure that sure that his decision letter showed why the appeal had the outcome that it did, bearing in mind that the parties to the appeal knew well what the issues were. The secretary of state had done that in the instant case.
The principal important controversial issue was whether the appeal site was required to meet the general need for traveller sites in the area, either because of problems with the proposed site at Meadow Lane or for any other reason. In concluding that the appeal site was not needed, the secretary of state had referred to various considerations. These included the fact that planning permission had been granted for the Meadow Lane site and that it was the second respondent’s responsibility, under the planning permission, its conditions and an attached section 106 obligation, to ensure that living conditions on the site would be acceptable for its occupiers. They also included a finding that the first respondent and his family were unlikely to have to resort to roadside living because there were other locations at which they could be accommodated. The secretary of state’s conclusion depended largely on the latter consideration and did not depend on the suitability of the Meadow Lane site for gypsy and traveller accommodation. The secretary of state had to make what was essentially a predictive planning judgment. His analysis was clearly conveyed in his decision letter and did not lack a proper foundation in the evidence and submissions before him, as reported to him by the inspector. His conclusion could not be described as irrational notwithstanding that it was different from that of the inspector.
(2) The secretary of state had set out his conclusions on the Article 8 considerations, including the best interests of the children. In the light of his conclusions, read together with the relevant parts of the inspector’s report identified in them, it could not properly be argued that the secretary of state had failed to deal appropriately with the Article 8 rights of the first respondent, his wife, and the family members affected by the outcome of the appeal, and, specifically, the best interests of the children involved. The secretary of state had not paid mere “lip service” to the Article 8 issues but had made a well-focused and thorough assessment of all relevant considerations arising under Article 8, including those bearing on the best interests of the children.
Stephen Whale (instructed by the Government Legal Department) appeared for the appellant; Alan Masters (instructed by Lester Morrill) appeared for the first respondent; the second respondents did not appear and were not represented.
Sally Dobson, barrister
Click here to read transcript: Allen v Secretary of State for Communities and Local Government
